Sunday, March 29, 2009

Updated It's there. It's always there, as an undercurrent, a tension, if you will, a leitmotif. No matter how often or how vigorously we thump ourselves on the back about how "generous" and "good-hearted" and "fair-minded" we are, no matter how many times we praise ourselves for our unique measure of understanding and compassion, no matter how loudly we proclaim our vaunted lack of class-consciousness, it is still there: our contempt for the poor, our Calvinist-slash-Puritan conviction that people are poor as a result of their own shortcomings of character and morals.

No, of course I am not claiming everyone feels that way. I am claiming what I said: It is a constant undercurrent in our society, in our political discourse, and in our social programs. We blame the poor for their poverty, regarding it as less a matter of economic circumstances than as - although we would rarely be this direct - a judgment of God.

I was a little slow to pick up on the latest example of this sneering condescension; it was my wife who spotted an AP article in our local major newspaper explaining how there are moves in at least eight states to require

"Nobody's being forced into these assistance programs," said Craig Blair, a Republican in the West Virginia Legislature who has created a Web site ... that bears a bobble-headed likeness of himself advocating this position. "If so many jobs require random drug tests these days, why not these benefits?"

Blair's bill, which would cover food stamps, unemployment compensation, TANF, and WIC, is the most extreme but not the only example.

On Wednesday, the Kansas House of Representatives approved a measure mandating drug testing for the 14,000 or so people getting cash assistance from the state.... In February, the Oklahoma Senate unanimously passed a measure that would require drug testing as a condition of receiving TANF benefits, and similar bills have been introduced in Missouri and Hawaii. A Florida senator has proposed a bill linking unemployment compensation to drug testing, and a member of Minnesota's House of Representatives has a bill requiring drug tests of people who get public assistance under a state program there.

The Florida proposal is particularly creepy: It would require 10% of new applicants for unemployment benefits to be tested, 10% of those currently getting them to be tested (I'm assuming each year) - and the costs of the test would be paid for out of the benefits of the person tested.

Although, as the AP article notes, this doesn't seem to be a coordinated effort, Phillip Smith, the editor of Drug War Chronicle, notes that advocates are "using remarkably similar rhetoric" in their pitches, ones I say are based on fear and even more on resentment, suspicion, hostility, and bigotry toward the poor and the struggling.

Oh, but we're told, there's nothing punitive about these bills, nothing at all. Oh no, it's all about our abiding, deep, concern for the health and well-being of the poor and about their ability to get jobs because, y'know everybody does drug testing these days, just everybody, so what's the big deal. And besides, think of the children!

Instead, think of the bigotry! Think of the rancid, putrid, vomit-inducing ignorance, paranoia, and bullshit that drives this kind of - to engage in my own abuse of language - "thinking." Think of how it equates being poor, being on welfare, needing Food Stamps, hell, with being unemployed with using drugs, indeed with being a drug addict. Think of how it approaches those who need help as somehow socially inferior creatures who we must control, test, guide - for their own good, oh of course, for their own good. Because we are their betters and so we know what they need - which is a good hard smack on the head, the lazy, drug-addled bums.

This is nothing new, it's been there from the start, it's not even something we created, it's something we inherited. In a previous job I did some research on early laws in England intended to address poverty, laws that dated back to the mid-1500s. In those laws and in the various attempts to amend them in ways to make the laws "work" as intended - which almost universally failed to do so - I found one constant, underlying, assumption, which repeatedly undermined the efforts: the assumption that there is work enough for everybody. So unless you are too young, too old and feeble, or in some way physically incapacitated to a degree that makes work impossible, if you're not working it's because you're either a shiftless good-for-nothing or a criminal. If you can't support yourself or a family, it's your own fault and you need to be sent to the workhouse or to prison.

We supposedly have grown beyond that, we supposedly have become more understanding. But while that old social bigotry may not be as rampant or as obvious, it is still there. It's been revealed in the various canards about "welfare dependency" that even lead some legislators to illustrate a talk about welfare with pictures of public parks with signs saying "Don't Feed the Animals." It's been revealed in the basic tenet of supply side economics that the way to reduce unemployment is to "lower unemployment benefits to increase the incentive to get a job," which if it means anything, means that people - the "underclass," that is, the "others" - will work only if their condition is so bad that they have no choice; they must be forced to work.

And it's revealed in these bills. An editorial in the News-Herald of Panama City, Florida, which took a libertarian-type stance against that state's proposal, noted that "the idea is that publicly funded benefits should be earned through good behavior," that there is in the minds of the bill's supporters a "moral component" to receiving aid. But as the editorial goes on to ask

[d]oes drug testing apply just to direct cash payments? Are only those who are out of work or indigent required to be drug-free? Or should anyone who receives taxpayer largess first prove that they are clean?

For that matter, lawmakers are compensated with direct cash payments of tax dollars. Why not make them relieve themselves in a cup before each vote to prove they aren't conducting the people's business under the influence?

The latter being the question I asked my wife when she first pointed me to the article. "What's your problem?" I asked of the person who wasn't there who would object to that notion. "How can you be against it? Or do you approve of legislators debating and voting on laws while they're stoned?"

But of course that suggestion will not be acted on; as Jeremy Meyer, director of the master’s program in public policy at George Mason University in Arlington, Virginia, wrote in Politico on Sunday, this is

Except for certain medical uses in certain states, he pointed out, marijuana, a central focus of the "concern," remains illegal virtually everywhere in the country even though we have just elected our third consecutive president who smoked it as a youth - all three of who support "imprisoning people for making the same choices [they] made."

He also said that "no one has suggested drug testing recipients of billions in bailout cash," which as I expect he knew is not precisely true: T. F. Thompson, contributor to the the Florida Times-Union, did so, as did John Wellington Ennis at the Huffington Post. Surely there were a number of others. But his real point remains valid: No "serious" commentator would dare propose such an outlandish idea, not without losing all claim to "seriousness." After all, the bailed-out bankers are not slackers, they are not lazy, they are the leaders! The producers! The creators! They are... superior! They are your betters and they judge you, not the other way around.

However, what is truly revealing about how much a part of our social fabric this prejudice against the poor is, what truly reveals just how effectively manipulative such grandstanding can be, what is ultimately most depressing, is the response. On the various news sites and in several polls, the comments are overwhelmingly in favor of these bills. One major theme was "I have to do it, everybody in private industry has to do it, so should they." (That actually isn't true; a majority of private employers and a majority of the Fortune 500 do, but that is nowhere near "all.") It's either if I'm treated crummy, so should you be, or if I don't mind being treated like a suspected criminal and having my privacy invaded, you can't, either.

The other was "those drug-swilling layabouts need to get clean before they get any of my tax dollars," which is the very idea that the most reactionary forces are pushing: an equation between drug use and poverty and the ancient distinction between the "deserving" and the "undeserving" poor - that "moral component" of which the News-Herald wrote - with only the most sympathetic included in the first group and the rest tossed into the latter pile like rubbish. The idea that there is a moral judgment involved in being rich or poor remains strong in our society and bills such as these and the support they gather from too many indoctrinated people who should know better are one outgrowth.

Still....

Still it must be said that there has been pushback. For one thing, the Clinton-era "end of welfare as we know it" allowed states to do drug testing as a condition of aid. When Michigan tried to take advantage of the change by implementing "random, suspicionless" drug testing, it was shot down in federal circuit court as a violation of the Fourth Amendment.*

More recently, a measure related to those now under consideration failed in Arizona earlier in the year. And in some perhaps surprising places, the idea isn't even under consideration.

Tom Shanahan, Idaho Health and Welfare Public Relations: "I don't think people want to see anyone, especially families with children, going to bed hungry at night. Traditionally, Idahoans who may qualify for food stamps, a lot of them don't apply and we're hoping that people who do need food assistance are coming in and hopefully getting it."

Even in the states where the bills have been proposed, there is opposition and their futures are not assured. For example, Kansas City Star columnist Barb Shelly called that state's proposal "loopy," saying the bill "targets people not because they've committed crimes or neglected their children, but simply because they're poor." She quoted one House member as calling it "crazy and mean."

I think it's doubtful the state of Kansas would ever have money to test welfare recipients for drugs[, Shelly said].

So why did House members spend two hours debating a bill that will probably go nowhere?

And nowhere is exactly where it may be going. After passing the Kansas House handily, the bill apears to have stalled in the state Senate:

In fact, Blair's bill didn't even make it out of committee. Although he hasn't given up on the idea, the method he's trying - getting a bill directly to the floor - has worked only rarely in the past and it appears to be dead at least for now.

More generally, Phillip Smith reports that

[r]andom drug testing of welfare recipients has also been rejected by a broad cross-section of organizations concerned with public health, welfare rights, and drug reform, including the American Public Health Association, National Association of Social Workers, Inc., National Association of Alcoholism and Drug Abuse Counselors, American College of Obstetricians and Gynecologists, National Council on Alcoholism and Drug Dependence, Association of Maternal and Child Health Programs, National Health Law Project, National Association on Alcohol, Drugs and Disability, Inc., National Advocates for Pregnant Women, National Black Women's Health Project, Legal Action Center, National Welfare Rights Union, Youth Law Center, Juvenile Law Center, and National Coalition for Child Protection Reform. ...

"Drug testing welfare recipients or people getting unemployment is a terribly misguided policy," said Hilary McQuie, western director for the Harm Reduction Coalition. "If you find people and cut them off the rolls, what's the end result? You have to look at the end result."

Which simply shows, I expect, how unserious Ms. McQuie is.

Smith gets the last word:

Legislators proposing random drug testing of welfare or unemployment recipients have a wide array of organizations opposing them, as well as common sense and common decency. But none of that has prevented equally pernicious legislation from passing in the past. These bills bear watching. [Emphasis added.]

Absolutely.

Footnote: On his unintentionally-hilarious website, Blair, who charges that opponents of his bill

are either enablers of bad (illegal) behavior, drug abusers or the most despicable of all...have a personal financial interest/gain in the demise of a certain segment of our society [emphasis as per original],

has a poll which asks "Which on describes your position? Do you favor random drug testing for those who receive welfare, food stamps, or unemployment benefits?" The choices are:

-Let's help people get off drugs and back to work!-I'm interested, but I want more information.-What are we waiting for? Suspend the rules and pass this bill!

Footnote to the Footnote: Besides wondering just who it is that Blair imagines has "a personal financial interest/gain in the demise of a certain segment of our society" and exactly how that "segment"'s "demise" would be profitable to anyone, I wonder why he doesn't consider the "personal financial interest/gain" on the part of the billion-dollar-a-year drug testing industry that pushes these kinds of measures? Or is that another example of the saying "some questions need only be asked?"

Footnote to everything above: When people like Blair, when people like those who posted comments about drug-sodden poor people who don't "deserve" any public assistance, picture such "undeserving" folks, what do they look like? Or is that, as I suspect it is, yet another question that need only be asked?

Updated to address a point I thought about addressing initially but didn't - but now it has come up comments, so I'll address it now.

In comments, Imee says "Blair does have a point when he asked, 'If so many jobs require random drug tests these days, why not these benefits?'"

I'll give two good reasons:

1. Bluntly, private companies do it for one reason and one reason only and it's the same reason they are increasingly demanding other sorts of personal information: because they can. It's an exercise in power, not in need-to-know.

I'm against such drug testing in private industry, too. You're hired to do a job; what you do in your off hours should be none of your employer's business. If there is evidence of drug use by an employee that affects their work performance, then I'd allow for some sort of drug testing of that person. (Note that this has nothing to do with offering drug counseling or treatment as a voluntary option to any employee that seeks it, with the understanding that seeking such counseling or treatment does not subject them to job-related drug testing lacking additional evidence of an impact on performance.)

2. Ignore my personal opinion for the moment. When the big moves for employment-related drug testing developed, there was a lot of opposition on the grounds of it being what it is: an invasion of privacy. A basic reason that courts allowed these intrusions was that private employers are not government and so are not constrained by the limits of the 4th Amendment, which requires cause. In the case of government jobs, testing was justified only for certain positions and then on the grounds that public safety was such an issue in those cases that it outweighed the right of privacy.

Which means that in reality, something with which he seems unfamiliar, Blair's argument comes down to this: "Private employers can do drug testing because they are not government. Because private employers do it, therefore, government can do it, too, even though government is government."

So no, Blair does not have a point. Except maybe on the top of his head.

Tuesday, March 24, 2009

Last Thursday, of course, marked the sixth anniversary of the insane, murderous, maddening, invasion of Iraq. It was also a crappy week for me personally (and not only for reasons already mentioned), but I still feel a sense of failure for not having mentioned it at the right time. In one rather skewed way, I suppose that could be regarded as fitting, since pretty much everything about the war has been and still is a failure and wrong. Wrong logically, ethically, morally, politically, practically, and pretty much every other relevant -ly.

But wait, how can that be? How can that be true in the face of what we see and hear every single day in the media, every single time the word "Iraq" is breathed by any of our oh-so devoted officials and oh-so wise pundits, which is that We've won! Victory! Or, if you prefer the more modest version, Success! Who am I to blow against the wind? Where do I get off talking about "wrong?"

Well, the fact is that Iraq today remains what it has been pretty much since our invasion: a nation devastated by death and in a state of economic collapse. Start with the fact that the "official" unemployment rate of 18% soars to 28% if you include part-time workers who want full-time work, according to the Iraq Labour Force Analysis report released by the UN in January.

Among its findings: 28% of males ages 15 to 29 are unemployed, 17% of women have jobs, and most of the 450,000 Iraqis entering the job market this year won't find work "without a concerted effort to boost the private sector."

And that situation could easily get worse due to the way oil prices fell over the last year, as oil provides 90% of Iraq's income. As one direct result of lower oil prices, Iraqi Interior Minister Jawad Bolani has frozen the hiring of 66,000 new members of the security forces - and it also casts grave doubt on the ability of the government to carry though on a promise to find civilian employment for some 100,000 Sunni insurgents who laid down their arms.

Even with improvements in the security situation[, the agency said in a separate report,] basic services such as water, electricity and medical care still cannot meet the needs of the population. Job opportunities are scarce and salaries are not enough to live on. For an average Iraqi earning around 70 US dollars per month, prices of goods are too high. In addition, such a person often has no access to health care. Many children, rather than go to school, try to support their families by walking between rows of cars to sell items such as cigarettes, fruit or sweets to drivers stuck in the capital's traffic jams.

On March 8, Oxfam released the results of a survey of Iraqi women which reflected and to some extent quantified that hard reality, revealing that a majority of those surveyed reported that

access to most services, including drinking water and electricity, was worse or the same in mid-2008 as it was in 2006 when levels of insecurity in Iraq were higher. A quarter of the women surveyed - 24 per cent - had no access to clean water. Nearly half of those who did have access to water - 48 per cent - said it wasn’t suitable for drinking.

And nearly 70% said access to water either had not improved or had even gotten worse over the past two years. In fact, even the Iraqi Environment Ministry admits that as of now, 36% of Baghdad's water supply is not safe to drink - and in a bad month that can rise to 90%.

Nearly half of those surveyed by Oxfam said their income had dropped since 2006 and another 30% said it was no better. (Amnesty International said a year ago that "more than four in 10 [Iraqis] live on less than a dollar a day.") Nearly half also said that access to quality healthcare had become more difficult. A third of those surveyed said they had electricity for three hours or less a day and two-thirds had it for no more than six hours a day; over 80% said that was either worse or no better than two years earlier.

Looking at the results, Oxfam International Executive Director Jeremy Hobbs declared that "a whole generation of Iraqis are at risk."

And there is not a great deal of conviction among Iraqis that this is going to change any time soon.

Iraqis interviewed by IWPR in several provinces listed runaway unemployment, entrenched corruption and faltering reconstruction as the biggest challenges ahead. Having lived in survival mode for years, many said they were eager to see development - but had little hope that provincial leaders elected a month ago would deliver it.

Yet despite all that, the trumpets are now blaring across the media the single, drum-it-into-your-head meme that We've won! Victory! What is the basis of this success? What is it that outweighs the misery, justifies that carnage, overrules the hunger? Why, it's that violence is down! That is the single metric employed. Not even that violence has stopped or peace has come or even the cold peace of "security." Just less violence.

[m]ost Iraqis I talked with on the eve of the first provincial elections being held after 2005 told me "security is better." ...

Indeed, security is "better," compared to my last trip here, when the number of attacks per month against the occupation forces and Iraqi collaborators used to be around 6,000. Today, we barely have one American soldier being killed every other day and only a score injured weekly. Casualties among Iraqi security forces are just ten times that number.

Such good news! We've won! Victory! But then, of course, he had to go and spoil it all:

But yes, one could say security is better if one is clear that it is better in comparison not to downtown Houston but to Fallujah 2004.

Compared to days of multiple car bomb explosions, Baghdad today is better.

Which is a pretty damn low bar. As I've often said in various contexts, skin cancer is better than lung cancer - but that doesn't mean that skin cancer is a good thing. And it certainly isn't a measure of good health any more than "less violence" is a measure of "success," particularly when you include the price tag of that "success." Dahr Jamail again:

[T]he capital city of the country is essentially in lock-down and prevailing conditions are indicative of a police state. ... [T]he government is exercising rigid and repressive controls over [the] social ... economic ... and political life of the citizenry.

By definition, a police state exhibits elements of totalitarianism and social control, and in today's Iraq, we have plenty examples of both.

Baghdad is a city of ever-present and everywhere-present troops with guns, but all of who still can't dispel the "omnipresent" fear that "anywhere, anytime, a bomb could be detonated." And it is a city, perhaps most particularly, of walls. All around, there are the walls. Some of them 20 feet high.

Baghdad's walls are everywhere, turning a riverside capital of leafy neighborhoods and palm-lined boulevards where Shiites and Sunnis once mingled into a city of shadows separating the two Muslim sects.

The walls block access to schools, mosques, churches, hotels, homes, markets and even entire neighborhoods - almost anything that could be attacked. For many Iraqis, they have become the iconic symbol of the war. ...

Indeed, new walls are still going up.... They could well be around for years to come, enforcing Iraq's fragile peace and enshrining the capital's sectarian divisions.

Psychic walls enforced by physical walls.

Outside Baghdad, the physical walls are not present but the psychic walls are. Iraq remains less a single nation than a collection of three regions: Baghdad and the south dominated by Shiites, the center and west by Sunnis, the north by Kurds. The much-promised, much-predicted "political reconciliation" remains promised and predicted rather than practiced. The signs of underlying tension remain. In a long article in the New York Review of Books last fall, Peter Galbraith of the Center for Arms Control ran through the overlapping conflicts, but this is a summary:

1. The central government of Prime Minister Nouri al-Maliki pretends to be some sort of Shiite-Sunni-Kurdish coalition but in fact is dominated by a Shiite coalition of religious parties, including Maliki's own Dawa party, committed to making Iraq into a Shiite Islamic state.

2. Sunnis, who clearly fear that possibility and still feel they're not getting their due in governance, are backing the Sunni militia known as the Awakening, which arose - with ample US support in guns and cash - when the Sunnis started to regard the foreign insurgents, the ones who adopted the name "al-Qaeda in Iraq," as a bigger threat than the US. That militia, lead by Baathists, now numbers some 100,000 and is potentially a strong force in its own right - which worries the Shiites, who see it as a threat to their own control.

3. Shiites also have their own internal divisions to worry about: Although Moqtada al-Sadr's rivals "outfoxed" him by using him to gain control of parliament, then dumping him, before Maliki sent Iraqi troops to oust Sadr's Mahdi Army from much of Basra and to make inroads in Sadr City, "al-Sadr has not been defeated and has significant residual support." (That support was demonstrated last Friday when "thousands" of his followers turned out in Baghdad to mark the anniversary of the invasion by demanding an end to the US occupation. A bigger test will come in a couple of weeks; there has been a call for a bigger demonstration on April 9, the anniversary of the fall of Saddam's regime.)

4. Meanwhile the Kurds, who had something of an alliance of convenience with the Shiites, are facing a central government that appears determined to marginalize them, "contain [them] politically and geographically." In early September, Maliki sent troops into a Kurdish town, deliberately picking a fight with the peshmerga, the Kurdish militia. That confrontation was defused, but when Iraq's defense minister proposed acquiring F-16s for the Iraqi air force, the Kurdish deputy speaker of the parliament protested, expressing fear that the planes' most likely target would be Kurdistan.

It was very likely that suspicion about - fear of - the intentions of the Shiite-lead central government that lead Nechirvan Barzani, prime minister of the Kurdish regional government, to say last month that

[t]he United States must resolve policy snags between Baghdad and the autonomous Kurdish region in northern Iraq before any troop pullout,

even suggesting that violence could erupt in the region otherwise. The US military is concerned enough about the rising tension that it has been acting as a mediator and there are plans to "flood the zone" with US troops if things start to flare up between the peshmerga and the Shiite-dominated Iraqi army.

Another recent sign of the continuing divisions came with the visit to Iraq by Iranian politician and former president Akbar Hashemi Rafsanjani.

[W]hile Rafsanjani and other Iranian leaders enjoy close ties with senior Shia and Kurdish officials[, IWPR reported last week], many Sunni Arabs accuse Tehran of meddling in Iraqi affairs and instigating the sectarian violence which crippled the country after the US-led invasion in 2003. ...

Hashemi’s Iraqi Islamic Party issued a statement saying Rafsanjani was “unwelcome” while the German news agency DPA reported that protesters in the largely Sunni province of Anbar called Rafsanjani a “killer of Iraqis”. ...

Usama al-Nujaifi, a Sunni member of parliament from the secular Iraqiya coalition, opposed Rafsanjani’s visit and said the red-carpet welcome was “too much” for the controversial figure. ...

Saleh al-Mutlaq, head of the Sunni-led National Dialogue Front, said the Iraqi government should break off relations with Iran until it becomes more democratic.

Okay, so let's sum up: We have poverty, unemployment, lack of clean water, shortages of electricity, inadequate health care, continuing ethnic and religious divisions both spiritual and physical with a constant undercurrent of threat of renewed civil war - not to mention that, as ICRC President Jakob Kellenberger noted, "indiscriminate attacks continue to leave dozens of people killed or injured on a daily basis," something the daily news can confirm.

Quoting Dahr Jamail one last time:

As a succinct summary after a week's stay, I have this to offer: The situation in Iraq has not changed except to worsen. What the passage of four years of occupation during my absence has brought to the people of Iraq is greater displacement, more economic degradation, extreme desperation, untreatable sickness and a near-total loss of hope.

That, friends, is what is being sold to us as "success" simply and solely because Baghdad 2009, while still one of the most dangerous places in the world, is not Fallujah 2004. A damn low bar, indeed.

Monday, March 23, 2009

I certainly went after the Obama administration for its - the adjective seems apt here - tortured defenses of presidential power, secrecy, rendition, and denial of rights to "detainees." There is very little sign of "change" in these matters. In fact, I may not have gone far enough, since during his confirmation hearings to be head of the CIA, Leon Panetta said the agency

Mr. Panetta said that in extreme cases, if interrogators were unable to extract critical information from a terrorism suspect, he would seek White House approval for the C.I.A. to use methods that would go beyond those permitted under the new rules.

In other words, we won't torture - unless we don't get what we want. We'll stick to the new rules - except when we don't. Things have changed - except where they haven't.

(Nor does it say much for the New! Improved! foreign policy that during that same appearance Panetta agreed with Sen. Evan "Don't You Wish I was My Dad" Bayh that there is "no question" but that Iran is seeking a nuclear weapons capability even though Director of National Intelligence Dennis Blair told the Senate Armed Services Committee a couple of weeks ago that

[t]he overall situation - and the intelligence community agrees on this - [is] that Iran has not decided to press forward ... to have a nuclear weapon on top of a ballistic missile....)

Still, it's important that credit be given where it's due and AttGen Eric Holder deserves praise for two weeks ago releasing those nine DOJ memos that showed how law and logic were twisted in the service of justifying torture.

More to the point here, Michael Isikoff of Newsweek reports that

[o]ver objections from the U.S. intelligence community, the White House is moving to declassify - and publicly release - three internal memos that will lay out, for the first time, details of the "enhanced" interrogation techniques approved by the Bush administration for use against "high value" Qaeda detainees. The memos, written by Justice Department lawyers in May 2005, provide the legal rationale for waterboarding, head slapping and other rough tactics used by the CIA. One senior Obama official, who like others interviewed for this story requested anonymity because of the issue's sensitivity, said the memos were "ugly"....

According to the administration official, ex-CIA director Michael Hayden was "furious" about the prospect of disclosure and tried to intervene directly with Obama officials. But the White House has sided with Holder.

Good for them, dammit, good for them.

An important point here, one noted by Isikoff and by Glenn Greenwald in his own comment on the news, is that this disclosure comes as the result of a years-long legal battle waged by the ACLU and the decision was made in the face of a court deadline in a FOIA suit brought by the group. (The ACLU appears to have issued no statement on the news, which is logical: They very likely want to wait until it actually happens or at least until a definite decision to declassify is announced by the White House.) Again, credit where it is due, yes? Even - perhaps especially - if it's not an exception.

Tuesday, March 17, 2009

Things have been a little rough of late, thus my absence: My father-in-law went home on hospice last week and died on Friday. The wake was today, the funeral is tomorrow. So I've been a bit distracted with family stuff and providing support to my wife.

Thursday, March 12, 2009

The info comes from Saturday's San Francisco Chronicle, which reports that the Obama administration is defending John Yoo,

arguing that a prisoner formerly held as an enemy combatant had no right to sue Yoo for writing legal memos that allegedly led to his detention and torture.

"We're not saying we condone torture," department attorney Mary Mason said at a hearing on the government's request to dismiss a lawsuit filed by Jose Padilla. But any recourse against a government lawyer "is for the executive to decide, in the first instance, and for Congress to decide," not the courts, she said.

"You're not saying that if high public officials commit clearly illegal acts, a citizen subject to those acts has no remedy in this court?" asked U.S. District Judge Jeffrey White.

Not unless Congress has expressly authorized a lawsuit, Mason replied. She cited the argument the Justice Department made in Yoo's case last year, with President George W. Bush still in office, that courts should not interfere in executive decision-making, especially in wartime.

In other words, it was the Bush administration's position and is now the Obama administration's position that if the Executive Branch fails to prosecute Executive Branch crimes, the people affected by those crimes have no recourse unless Congress, having somehow anticipated the situation, specifically and in so many words allowed for such a suit.

But they're not condoning torture, oh no. They're just covering the asses of those who justified it.

The Obama administration, siding with the Bush White House, contended [on February 20] that detainees in Afghanistan have no constitutional rights.

In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. ...

[F]our Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system. ...

"They've now embraced the Bush policy that you can create prisons outside the law," said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.

The Obama administration says Bagram is different from Gitmo and thus the prisoners at Bagram are not covered by last summer's Supreme Court ruling giving prisoners at Gitmo appeal rights because it's in a war zone and the prisoners are held as part of a military action.

But in that case, instead of being classified as so-called "enemy combatants," they should be regarded either as either POWs or civilian detainees with the protections of the Geneva Accords - among which is being free of inhumane treatment, rather than being beaten and tortured in a facility that is "worse than Guantánamo" and one which Obama is prepared to continue to shield from scrutiny.

Wednesday, March 11, 2009

Al-Marri is a citizen of Qatar who was residing lawfully in the United States under a student visa when he was grabbed, labeled an "enemy combatant" and a sleeper agent for al-Qaeda, and locked up in solitary for five years, without charges, in a Navy brig. In 2008 the Fourth Circuit Court of Appeals, the oppressor's darling, threw out a suit challenging his confinement on Constitutional grounds, ruling everything was just dandy, all properly Constitutional and stuff.

In December, the Supreme Court agreed to hear his appeal. On February 27, he was indicted by a federal grand jury on two charges related to terrorism, after which the Obama DOJ asked SCOTUS to declare his appeal moot. On Friday, the Court did so, thus enabling the government to avoid a decision that could have tossed out the entire concept of the authority of a president to, on their own say-so, imprison people without charge, without access to attorneys, without due process, and potentially without end.

If that sounds at all familiar, it's because it's exactly what was done with/to Jose Padilla. He, too, was seized as an "enemy combatant." He, too, was held in solitary for years. He, too, filed suit (or rather, others did it on his behalf). He, too, lost at the Fourth Circuit Appeals Court; he, too, appealed to the Supreme Court; and he, too, was moved into the regular criminal justice system at essentially the last minute and had his suit declared moot. What did someone call it the other day? "A case of déjà moo - I've seen this bullshit before."

One difference between al-Marri's case and Padilla's is that this time the Court vacated the Fourth Circuit ruling, meaning the case sets no judicial precedent that other courts can look to for guidance. However, since the Padilla ruling was not vacated and so is still precedent, that is very (very) little consolation. The government knows it:

While the government did not defend its power to detain Mr. Marri at present, it left open the possibility that he or others might be subject to military detention as enemy combatants in the future. “Any future detention - were that hypothetical possibility ever to occur - would require new consideration under then-existing circumstances and procedure,” the Justice Department told the court in a brief filed Wednesday.

That is, the administration - the Obama administration - is openly declaring that it still regards itself as free to continue to use the legal fiction of "unlawful enemy combatant" to confine whoever it chooses, whenever and however. As Glenn Greenwald noted,

Federal courts are excruciatingly slow. Even when someone's liberty is being unjustly deprived ... federal judges take their sweet time in issuing rulings: often many, many months - sometimes longer. ... Thus, it's virtually certain that it will take a case of this sort several years to wind its way through the various stages of judicial review, all while the detainee sits in prison with no trial.

This time factor alone vests the U.S. Government with the power to imprison legal residents or even U.S. citizens with no trial for at least a period of several years, as the detainee's constitutional challenge to the process-less imprisonment slowly winds it way through the federal courts. Before the U.S. Supreme Court can rule on whether that is constitutional, the Government can then finally bring charges against (or simply release) the detainee, and then argue to the Court (apparently, with success) that there is no reason for the Court to rule on the constitutionality of those actions because the case is now "moot." That's what just happened in the Al-Marri case (just like in the Padilla case), and there's no reason why it can't continue to happen that way. [Emphasis in original.]

I've thought for some time that not only judges, but the entire court system seems to think that time stops, that the whole world literally comes to a halt, as they ponder their decisions and they believe that the length of time they take to get and make rulings has no impact on the lives of the real people those rulings are about.

But for that very same reason, I can't concur with Greenwald's statement in his otherwise excellent piece (one echoed by Jonathan Turley) that "the Obama administration absolutely did the right thing in indicting Al-Marri." Not when that indictment served as a means to dodge a decision on the constitutionality of his imprisonment these past years.

I'm not saying he should be freed; if the DOJ honestly believes he is guilty of serious crimes, by all means go ahead and charge him. But I'd say hold off on filing them. Continue to hold him but in a civilian prison under improved conditions (since under the alternative of indictment he would still be imprisoned, this does not damage his situation) and don't file charges at least until after the oral arguments on his suit (which had been set for April) - during which you say that upon re-consideration, the White House finds it cannot continue to support the position that the president has the power to detain so-called "enemy combatants" outside of the criminal justice system. That is, urge the Court to make a ruling and to make it in favor of al-Marri.

But the fact is the Obama administration did not do that and would not do that. The Obama team wanted the case mooted, wanted to avoid a judgment which they feared they would lose. How do I know that? There is a legal principle called "capable of repetition, yet evading review" which creates an exception to mooting a case.

Basically, it means that even if a given controversy becomes moot (resolved) before the appeal is heard, the case will continue if the controversy is one that is "capable of repetition", meaning that the same situation can occur again. ...

The second part ("evading review") applies where the mootness is controlled entirely by one party. Here, the government made the case moot by voluntarily changing its own behavior. And the government has sole control over whether it goes back to it the earlier behavior or not.

(Link via Glenn Greenwald.)

The case being described there is actually a January 2007 motion by Bush administration urging that all lawsuits related to illegal wiretapping be dropped, but it fits here just as snugly. And in this case,

[t]he government did take pains to deny that it was manipulating the legal system, an accusation made against the Bush administration when it moved Jose Padilla from military detention to criminal court in 2007.

“The government’s agreement here that vacatur of the decision below would be appropriate,” the brief said, “conclusively demonstrates that the government is not attempting to preserve its victory while evading review.”

That is, the government was at pains to avoid raising that exception to mootness. And again, since the Fourth Circuit's Padilla decision was not vacated, vacating al-Marri doesn't seem to impact the government's legal position; it certainly doesn't impact its claims to authority to imprison "enemy combatants."

Which is why Emily Berman of the Brennan Center for Justice at NYU School of Law is going to be disappointed:

We applaud the Supreme Court for vacating a decision that accepted the extraordinary claim that the president has free-wheeling authority to detain indefinitely people living in the United States.... But we are still disappointed that the court did not take this opportunity to firmly clarify the limits of detention power. It's up to President Obama now to affirmatively renounce the domestic detention power claimed by his predecessor....

I'm sorry, Ms. Berman, but that's something it certainly appears he has no intention of doing.

On February 25, Obama's Justice Department defended the constitutionality of the law providing retroactive immunity to the telcoms that engaged in illegal wiretapping in conjunction with the Bush administration. It comes in response to a suit filed by the Electronic Frontier Foundation arguing the telcom immunity law passed by Congress was unconstitutional.

The language used by the Obama team in its filing was chillingly familiar:

"Electronic communication service providers play an important role in assisting intelligence officials in national security activities. Indeed, the intelligence community cannot obtain the intelligence it needs without assistance from these companies," the Administration's 18-page brief says.

"The committee was concerned that, without retroactive immunity, the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation," it adds.

It continues: "The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation," directly citing the 2008 findings of the Senate Select Committee on Intelligence Report.

Those are precisely the same arguments, almost even the same words, that the Shrub gang used in trying to get the suit dismissed in order to cover up its criminality, a cover-up the Obama administration seems more than ready to continue.

There are also a couple of arguments that should leave people with common sense just blinking in disbelief:

The constitutionality of the law is defended on the grounds that the attorney general is only carrying out powers specifically given to him by Congress.

So it's okay to actively seek to conceal government criminality if Congress says to? What?

"Congress provided the Attorney General an intelligible principle by enumerating specific and narrow circumstances in Section 802 [of the Patriot Act] that control whether and when he may make a certification," it continues. "The Act permits the Attorney General to certify facts to the court only when there is a pending civil action in which a person is alleged to have 'provid[ed] assistance to an element of the intelligence community.'"

Which means, if it means anything, that the law covers those occasions the law is intended to cover and does not cover those occasions it is not intended to cover - and that very "narrowness" makes it valid. I can only assume that if Congress passed a law giving the AttGen power to imprison people without trial but limited it to people who had publicly protested US foreign policy it would also be regarded as passing Constitutional muster by this crowd.

This case, like the Al-Haramain one, is being heard by District Court Judge Vaughn Walker.

Just days later, the Obama White House again invoked the "state secrets privilege," this time in a suit filed by two former lawyers of the Al-Haramain Islamic Foundation, a now-defunct Muslim charity that was the target of government surveillance. The government had accidentally revealed - and then successfully demanded the return of - a document showing that the two had been illegally wiretapped. They sued and last summer the judge in the case, San Francisco District Court Judge Vaughn Walker - gasp! - refused to accept a claim of the state secrets privilege on the reasonable grounds that the White House could not use it to suppress evidence of its own criminality.

On January 5, he issued an order allowing the attorneys to view the document, which they need to prove standing to sue, but not to release it. At January 23 hearing on the order, Obama's DOJ argued for a stay pending an appeal, which Walker was disinclined to give. So the Obama team scurried, and on February 12, they filed an appeal, repeating the Shrub claim of state secrets.

On February 27, the appeals court refused to block the order - as a result of which, the "Everything is Different Now" White House told Walker that it was considering "withdraw[ing] that information from submission to the court and use in this case."

It seems no one is quite sure what that means and some have suggested the administration plans to physically seize the documents - or, more exactly, maintain physical control of them, as they are now

locked under the control of the Obama administration's Litigation Security Section of the Justice Department, according to the record in the case.

That is, they could physically prevent the judge from having access to them.

Douglas Kmiec, a Pepperdine School of Law constitutional scholar and President Ronald Reagan's chief attorney under the Office of Legal Counsel, said he has never heard of a lawsuit in which evidence ruled admissible was simply pulled from a case by the government. ...

Jonathan Turley, a George Washington University legal scholar, agrees with Kmiec. "I've never heard of a case where the government withdrew a document considered relevant without the court's permission."

On February 9, Obama's DOJ announced it would maintain the Bush administration's position in Mohamed et al v. Jeppesen Dataplan, Inc.

The case involves five men who claim to have been victims of extraordinary rendition.... They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.

A year ago, the case got thrown out based on an assertion of the spurious "state secrets privilege" by the Bush team. However, the Ninth Circuit Court of Appeals agreed to hear an appeal brought by the ACLU. In response, the Obama team reasserted the privilege, one founded on lies, under which the Executive Branch claims the power to make an unreviewable decision that allowing the case to continue would threaten national security - without even being under any obligation to explain how or why it would do so. While theoretically courts can refuse to recognize the privilege, they rarely if ever do - so it becomes a one-size-fits-all cloak for government misconduct, including shielding itself from examination of its extraordinary rendition and torture.

Justice Department spokesman Matt Miller said

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations."

Or, more clearly, we'll tell you whatever we in our sole discretion decide you have the "right" to know.

Footnote: The link at "states secrets privilege" is to an old post with a now-defunct link to an LA Times series. But this link to a review of a recent book on the case that gave rise to the "privilege" should do.

Another Footnote: A bill has been introduced in both houses of Congress that would set limits on the use of the state secrets privilege. It would among other things require that the government at least demonstrate to a judge that there really is some jeopardy to national security involved instead of expecting the judge to accept the claim without examination of it, as usually happens now.

[t]he [British] government was accused last night of hiding behind claims of a threat to national security to suppress evidence of torture by the CIA on a prisoner still held in Guantánamo Bay. ...

Two senior judges said they were powerless to reveal the information about the torture of Binyam Mohamed, an Ethiopian-born British resident, because David Miliband, the foreign secretary, had warned the court the US was threatening to stop sharing intelligence about terrorism with the UK.

In a scathing judgment, Lord Justice Thomas and Mr Justice Lloyd Jones said the evidence, and what MI5 knew about it, must remain secret because according to Miliband, the American threats meant "the public of the United Kingdom would be put at risk".

The BBC said Miliband denied the charge, insisting there had been "no threat" from the US, but the Australian newspaper The Age was able to report on a "flurry" of letters between the Foreign Office and the State Department in August 2008 in which the US in so many words threatened that release of the information "could harm ... intelligence information sharing arrangements between our two governments" and would have the effect of "serious and lasting damage to the US-UK intelligence sharing relationship, and thus the national security of the UK."

Significantly and why this is related to the present discussion, The Age reported,

[t]he court was also told that Mr Mohamed's lawyers had tested the new administration of President Barack Obama and that the warning stood.

In case there was any doubt, after Miliband issued his denial,

the White House said it "thanked the UK government for its continued commitment to protect sensitive national security information".

It added that this would "preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens".

Exactly how that is supposed to be read as anything other than a confirmation that the threats were made - and endorsed in February by the Obama administration - is quite beyond me.

The day after the inauguration, the new administration filed a brief in a suit about forcing the White House to take greater efforts to locate and restore perhaps millions of emails "lost" by the Bush White House. The brief, echoing the stance of the Bush gang, argued the case should be dismissed because the effort to date had been sufficient. This even though

"We do not know how many more e-mails could be restored but have not been, because defendants have not looked," the National Security Archive said in [its own filing].

"The new administration seems no more eager than the last" to deal with the issue, said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, the other group that sued the [Executive Office of the President].

Tuesday, March 10, 2009

I told you so. All of you who thought Barack Obama was the second coming. All of you who found ways to excuse every twist, dodge, and rightwing-pandering as either unimportant or part of some brilliant strategy. All of you who carped "Hey, why don't you wait until he actually does something, y'know?"

I told you so. Not just me, of course, there were others. We told you so. I told you so. Specifically on this:

The day after the election I wrote of Barack Obama that

those who insist that on matters such as FISA he will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself.

What's happened in the interim? I'll let Glenn Greenwald lay it out:

Thus far, in the realm of the Constitution and civil liberties, the primary attribute of the Obama administration is to do everything in its power to protect and preserve the President's ability to assert the radical powers invented and seized by the Bush administration, independent of whether they actually intend to use those powers at some point.

In other words, I told you so, which I'll now demonstrate with some specifics.

In a weekend interview with the Boston Globe plugging his joint appearance with Ann Coulter on Tuesday, Bill Maher had this to say:

Q. About the only thing you two might agree on is profiling at airports. You think there should be some form.

A. All police work is profiling. No policeman would say you can do your job without profiling. It just means some people are more likely to commit a crime. In the case of the airports, a young Muslim man who is shaking and sweating is a little more likely than a toddler or a grandmother.

Of course police work involves "profiling," you twit, in exactly the same way that every human encounter involves profiling, involves making judgments about the other person. The issue is the basis on which those judgments are made.

No one would object, I expect, to a passenger who acted jumpy and nervous arousing some suspicion because that "profiling" is based on their behavior - that is, the suspicion is directed against that individual, not some category to which they belong. Even granting the arguing by extremes that "young men" are more likely to be criminals than "toddlers and grandmothers," the fact is, you didn't say "a young man who is shaking and sweating" and you sure as flaming hell didn't say "a young white man" or "a young Christian man," you said "a young Muslim man."

Which means, you moron, you just declared that being a Muslim makes you more likely to be a criminal! That being Muslim is a proper basis for arousing suspicion among and being targeted by security guards.

That is a definition of racial profiling, you jackass. It's exactly what the complaints are about.

Oh, and by the way, just how do you know this young man is a Muslim? By his clothing? Hey, maybe he's wearing a turban - even though in that case he's far more likely to be a Sikh. Or is it just the color of his skin?

What's that? No, of course I haven't forgotten that it was Muslims who carried out 9/11. Don't be stupid. But then let me ask you: Was Eric Rudolph a Muslim? Was Timothy McVeigh? Terry Nichols? William Krar? And that's without even getting into attacks not involving the US.

Bill Maher, you can be funny, but that unctious smirk of yours just lost a lot of its appeal.

Monday, March 09, 2009

A couple of weeks ago I mentioned that a Facebook group had used a quote from a post of mine called "Heroics," which objected to the increasing frequency with which progressives routinely refer to all soldiers as "heroes."

Well, it seems someone linked to it on Reddit and it moved up until it was on the front page - with the result that on Saturday I got just barely under 7,000 hits. In one day. The post now has 38 ratings votes and 50 comments, both records.

I don't know if it did me any good in the longer run because the page views dropped from where they'd been - varying over time between 1.2 and 1.4 per visit - to 1.1, which means most of those folks looked at the one post and nothing else. So I dunno how many will come back. Still, overall it was an interesting experience.

I'll also take a moment to note that I'm a little pre-occupied these days - besides the increasing money worries that afflict so many others as well, my father-in-law is going on hospice today. But I expect to be back around tonight; this is a good distraction.

Saturday, March 07, 2009

It appears, based on oral arguments, that the California Supreme Court is going to uphold the constitutionality of Proposition 8, known as PropHate.

It's really no surprise; supporters of same-sex marriage knew it was a long shot since it involved convincing the Court that PropHate involved a "revision" to the structure of the state constitution rather than an "amendment" to it. Still, it's a bitter disappointment.

However, that left the Court struggling with the question of how to do both when the measure says (in full, mind you) "Only marriage between a man and a woman is valid or recognized in California." It even lead one Justice to suggest the possibility of requiring the state "to employ non-marriage terminology" so that the state would deal only in "civil unions" and "domestic partnerships" rather than "marriages."

Perhaps more importantly in the long run, such a split decision - upholding both PropHate and the same-sex marriages already existing - could open a door to a federal appeal. David Cruz, a professor of constitutional law USC, said

[h]aving some gay couples allowed to stay married while others are prohibited from saying "I do" would provide legally plausible, if politically debatable, grounds for an appeal under the equal protection clause of the U.S. Constitution....

That also seems to me a long shot but it can mean that the fight is not yet over.

Meanwhile, the expected outcome at the state level has left existing same-sex couples relieved that their marriages are likely not at risk but fearful of "being isolated culturally and legally."

"It will be challenging for those 18,000 couples," [Jon] Davidson [of Lambda Legal] said. "They are likely to be frequently asked to prove that they are married. ... They will be going forward where no couple has gone before."

At the same time, the gay married couples may help educate Americans about same-sex marriage, Davidson said.

"They will be kind of living examples of the fact that no one else is harmed by the existence of married same-sex couples," he said.

That fact, that demonstration of lack of harm, was what caused the move to undo same-sex marriage in Massachusetts to collapse. And it was why I was hopeful - wrongly so, as it turned out - that PropHate would fail. Still, I can't but believe that ultimately, and I know it's a cliche but still, I believe that ultimately, justice will prevail and same-sex marriage will be as unremarkable as straight marriage and the sight of two men or two women tenderly holding hands in public will elicit only smiles, not frowns.

A First Footnote: Oddly enough, the decision is coming at a time when evidence is increasing that allowing for same-sex marriage brings economic benefits not only to the couples but to the states in which they live. And some supporters of same-sex marriage in the Minnesota state senate are planning on introducing legislation to allow for such marriages based on exactly that argument.

One of those supporters, state Senator Scott Dibble, notes that legally married couples are generally in better financial shape overall.

He says examples [of advantages] include the joint ownership of property; joint credit; the ability to share health-care benefits with a partner; and inheritance rights. ...

Amy Johnson, executive director of the gay, lesbian, bisexual and transgender equality group OutFront Minnesota, says that in the long run, routine rights that married couples may take for granted amount to all sorts of hidden costs for coupled but not legally married homosexuals. ...

Gary Gates, a demographer at the Williams Institute at the UCLA School of Law who researches sexual orientation law and public policy, says the state itself would see a "noticeable economic benefit" from legalized same-sex marriage.

Since a specific analysis of Minnesota has yet to be completed, Gates uses findings from other states and compares them to Minnesota's roughly 15,000 same-sex couples. He guesses the state could see as much as $10 million in additional revenue over the first three years.

A number of activists wonder if this is the right approach to take, but as Amy Johnson said, "I'll take your vote, even if you're not really understanding [the larger argument]." [Brackets in original.]

A Second Footnote: A point that struck me in the Law.com article linked above (which came via Jonathan Turley's website) was when California Supreme Court Chief Justice Ronald George

posed a hypothetical in which same-sex marriage wasn't upheld by the court, and then was followed by two initiatives - one that legalized such marriages and a subsequent one that outlawed them.

Wouldn't it be a "one-way street," he asked, if one group was allowed to extend rights while another was prohibited from removing them?

I'm very tempted to say "Yes. And Good." The history of human rights has been one of expansion, one of gradual but increasing recognition of rights previously ignored or denied. A "right" that can be taken away by a simple majority vote is not a right at all but a mere privilege dependent on current political winds.

And yes, I am aware that requiring a three-fifths or two-thirds or whatever majority vote only raises the bar for stripping away rights, it does not eliminate it. That only serves to emphasize that what we are talking about here, the laws and initiatives and court decisions, is not actually rights or right-and-wrong but legalities. And as we all know, the law and justice are not the same thing. Given the choice, I will always demand that the former conform to the latter and not the other way around.

Friday, March 06, 2009

"Wow," an interjection defined as "an exclamation of surprise, wonder, pleasure, or the like."

So yeah, wow, indeed.

Jonathan Turley lets us know that the Supreme Court

has ruled 6-3 in favor of [Diana] Levine, a musician from Vermont, who lost her right arm after being given a anti-nausea drug [made] by Wyeth.

Levine was administered the drug, Phenergan, by intravenous injection even though that created a danger of gangrene by inadvertent contact with arterial blood. As I noted when I wrote about the case in November, Wyeth and the FDA both knew of the risk but the warning label merely advised against intravenous injection rather than banning it. Levine sued on the grounds that the warning was clearly inadequate and was awarded $6.7 million.

Wyeth appealed to the Vermont Supreme Court and lost again. So it turned to the feds.

The issue[, Turley goes on,] was federal preemption and whether Congress effectively barred lawsuit once a drug was approved by the Food and Drug Administration. The Bush Administration entered the case on behalf of Wyeth and against Levine to try to block patients from being able to seek recovery against drug manufacturers.

More specifically, the issue was implied preemption. In February 2008, SCOTUS ruled in Riegel v. Medtronic

that manufacturers of FDA-approved medical devices were immune from common-law suits based on state law principles because federal law expressly preempted them - that is, the law said that no interpretation of liability could be stricter than that established by the feds.

In Wyeth v. Levine, the corporate giant, supported by the Department of Justice, tried to expand on that argument, claiming in effect that because FDA considers itself to be the final authority on safety issues, suits based on state laws are preempted - even though federal law regarding warning labels on drugs contains no preemption clause. In other words,

[t]he lowest common denominator consumer protection established by the FDA, Wyeth and the DOJ are saying, is not a minimum the company must meet but a maximum anyone is able to enforce.

And the Shrub gang and Wyeth lost. At the Supreme Court. The almost shamelessly pro-corporate Supreme Court. The supreme Court that ruled against Lily Ledbetter. Damn.

Surprisingly, Clarence Thomas was part of the majority. Unsurprisingly, the dissenters were Justices John Roberts, Antonin Scalia, and Samuel Alito, the latter of who called the ruling “a frontal assault on the FDA’s regulatory regime for drug labeling.”

Alito is just a little confused; of course he meant the pharmaceutical industry's regime for drug labeling. An easy mistake to make, as the two are so similar.

Footnote: When I wrote about this in November, I predicted that the case would go as other corporate issues have of late at SCOTUS: That Wyeth would win on some technicality that would allow for implied preemption without swinging the door open wide. One of the nice things about being cynical is that you can be happy to be wrong.

What they are saying

"He writes with sensitivity, passion, intelligence and with an eye to the common good."

"[He is] clearly one of those silly people who believes in 'civilization,' probably along with the Tooth Fairy and justice."

"He lives in a magical fantasy world."

"Powerfully spoken."

"A balanced and sensible view concerning the crazy ideas that often prevail regarding war and freedom."

"You do good work."

"Our political differences are vast and irreconcilable but he earnestly believes what he wants is best for the country; he’s firmly committed to it, makes no apologies for it and won’t settle for less."

"God bless you!"

"SHUT THE FUCK UP."

About Lotus

Lotus has been at various times the newsletter of a local peace group, a column in a different group's newsletter, a stand-alone monthly, and now a blog. It maintains a loose "twice-weekly-plus" schedule: column-length pieces posted (at least) twice a week plus additional posts of varying lengths appearing at irregular but reasonably frequent intervals.

Comments either here or by email are encouraged. Comments here must be reasonably relevant and reasonably civil. Spam, trolls, and comments that are merely personal slams on me or another commenter will be deleted without hesitation or warning.

Note well: Anonymous comments that do not make clear and explicit reference to the post in question will be assumed to be spam.

My email is:whoviating at aol dot com

About Me

I'm an aging hippie, an educator, and a political activist, the terms'
order of presentation depending on circumstances and my mood of the
moment. I'm also a democratic socialist/green with an anarchist bent and
a civil liberties absolutist who has, by both logical conclusion and
moral compulsion, a commitment to active nonviolence. The only isms I
wholeheartedly endorse are skepticism and eclecticism.

Among the Missing

Beyond the reciprocal links, my blog list is pretty much limited to blogs I actually do look at on at least a fairly regular basis. These are blogs I looked at regularly but have not had a post for at least six months. If it reaches a year without posts, I assume it's been abandoned and remove it from the list.